Surrogacy’s Hard Cases, II

Last time I suggested there were two sets of “hard cases” when surrogacy goes bad. I think it’s important to think about these hard cases before they actually arise. After all, if one cannot come up with adequate solutions to them, perhaps that is a reason for banning paid pregnancy, which is how I’m thinking about surrogacy just now.

The hard cases are those where one of the parties to the agreement (either the intending parent(s) or the surrogate) changes her/his/their mind. I discussed what I think of as the easier of the two hard cases–where the intended parents decide they do not want the child–last time. That leaves me with the harder hard case–where the pregnant woman changes her mind and decides she wants to keep the child.

In thinking about this, it’s worth noting one bit of background information: A pregnant woman can agree to an adoption before her child is born, but she will always (someone stop me here if I’ve got this wrong?) have some time after the birth to reconsider this decision. In other words, her commitment to adoption is not irrevocable. Although the period during which she can reconsider her decision is short, this has doubtless this has lead to heartbreaking situations for the people planning to adopt the child. (I do wonder about how frequently this occurs–has anyone seen any statistics?)

So one way to recast the question about the hard surrogacy case is to ask whether the pregnant woman in the surrogacy case should be treated the same as the pregnant woman in the adoption case. If she is treated the same, then she can choose to keep the child. If you want to say she is bound to deliver the child to the intending parents then you need to say you would treat her differently than the pregnant woman in the adoption case.

(It occurs to me it would also be possible to say that we should change how we treat the pregnant woman in the adoption case and that in both instances the woman should be bound by her commitment, but I’d like to defer this discussion to another day in order to try to keep things under control here.)

I can see two ways you might distinguish surrogacy from adoption. First, you could focus only on gestational surrogacy, and distinguish that from adoption by saying that in the former there is no genetic connection between the pregnant woman and the child she gives birth to and in the latter there is and that this distinction warrants different treatment. I reject this line of reasoning because I would not give that sort of meaning to the genetic connection or lack thereof, and because I don’t want to distinguish between gestational and traditional surrogacy.

In the alternative, you could distinguish between surrogacy and adoption by focussing on timing. In surrogacy, the intention not to be a parent precedes the pregnancy. In adoption, the pregnancy comes first, followed by the decision to participate in adoption, which is the intention not to be a parent. (You could also note that the intention to parent of those commissioning the surrogacy precedes the pregnancy, while the intention of those planning adoption does not precede the pregnancy.)

Now these are actual distinctions–I do see that. But it isn’t as clear to me why these distinctions should be freighted with great significance.

Things might look slightly different depending on whose point of view you take. I really don’t see why the order of pregnancy/intention should matter from the point of view of the surrogate. After all, many women become pregnant without giving much thought to whether they intend to be a parent–as when pregnancy is the unintended result of sexual intercourse. So in those cases, too, the pregnancy precedes the formation of intention, yet we’d give the pregnant woman the chance to re-evaluate her decision to give up the child for adoption after the child is born.

From the point of view of the people intending to become parents there might be slightly more reason to draw this distinction. In the case of surrogacy, the intention of the commissioning people is the motivating force behind the pregnancy, while in the case of people planning to adopt, it isn’t. But it isn’t clear to me why being the motivating force ought to change the right of the women who is pregnant to have that period for reconsideration.

I’m not sure I’ve made that much progress here today–maybe all I’ve said is that I don’t really see why we would treat adoption and surrogacy differently in this regard. I’ll try to work through this further tomorrow.

One thing you might note–I’ve proceeded mostly today without dealing with the question of who is the parent of the child born to the surrogate. I do think this a critical question in the end, but I wanted to try to think about the problem without diving right into that.

36 responses to “Surrogacy’s Hard Cases, II”

I think this is viewed differently depending on what state you reside in. In Wisconsin, for example, a woman who gives birth with the intention of adopting out the child, has a right to change her mind right up to the time she testifies about her desire to freely and voluntarily give up her parental rights. It seems to me the same should apply to surrogacy. However, should the woman change her mind and keep the child, she would not be entitled to any cash payments promised or contracted for – at least in my mind.

It’s true that state law varies here, but I think all states give the woman who gives birth some opportunity to change her mind about placing the child for adoption. You’re right, too, (and I should have said this) that if one does give a surrogate an opportunity to change her mind and if she does that, then she ought not to get the payment for surrogacy services that was promised.

Wow, Lee you just basically said she only gets paid if she hands over the baby, if she keeps the baby she gets no money. So that contract would be so incredibly illegal and frankly morally reprehensible I hope that no court would get involved with a contract like that without throwing all of them in jail. I don’t think there is any law that prohibits gestating a child for money whether you created the baby yourself with your own eggs or whether someone else created the baby with her eggs. So paying a woman to be pregnant and give birth is a a perfectly legal loophole for human trafficking – so long as it does not appear the people paying have an interest in her completing the pregnancy. A traditional surrogate is not a surrogate or substitute for the woman who wants the baby thats just the way its phrased to gloss over the fact that she’s just a woman who is having a baby with a married man and once the baby is born she plans to give full custody to the father and will relinquish her parental rights to the baby’s step mother by allowing her to adopt the child. Its so distasteful because of course the mother is selling her child to the step mother. I think the traditional surrogate is nothing more than a mother giving her child up for adoption and she certainly should always have the right to change her mind without fear of penalty. The money the baby’s father pays her up front is kind of a loss leader an investment that might not pay off in the end if the mother comes to her senses and splits custody with him – he still gets a kid, the wife gets to live in the light of honesty as the child’s step mother because that’s all she is, her intentions are meaningless she can’t buy the rights to another person’s baby.

I agree that this situation is no different from adoption, except that there is a genetically related father in the picture.

This leads us to adoption law. I’ve been told there are adoption organizations who prime vulnerable expentant young women with money and gifts, pay for medical care, living expenses, then when the baby is born, the new young mother is told she will have to return everything if she decides to keep the child.

I think its probably illegal and its unwise of the agency to expose itself and its clients – I mean then it definitely looks like the things they gave her were a bribe and they are always trying to make those bribes look like charity. I say the practice is a sleezy loss leader and if its part of the game they need to suck it up when they loose. You don’t call the cops if someone steals your drugs – if what you are doing is illegal and you get stiffed its all on you.

that makes sense. However, I recall reading that in Florida there was an initiatvie to “choose life” (instead of abortion) I think it may have been even state sponsored, which offered gifts and incentives- but only to those going for adoption!
I was looking for the source where I read it, but couldn’t find it. I hope Julie will weigh in on the legality of the thing.

I imagine there are instances where young women who are pregnant are misinformed about their legal options. I cannot specifically recall reading about this happening, but in the grand scheme of things, it seems to me inevitable.

Further, it is true that there are individuals/entities that make their money off of adoption. It may not be legal to pay the pregnant woman for her baby, but it is frequently legal to pay fees to those that facilitate matching prospective parents with pregnant women. This being the case, it’s hard for me to believe there aren’t instances where someone in the middle hasn’t gotten a little over-enthusiastic about ensuring the adoption is completed. But I’m just speculating really.

If it happens, is it illegal? I doubt it is criminal–I’m not sure what crime that would be. But it might constitute a tort of some kind (which is to say it might be unlawful and hence be a proper basis for a lawsuit by the woman who gave birth.)

I know less than I should about what happens in this area, and that in part might reflect the fact that it doesn’t show up in the press all that often. I do know there are instances of fraud where people take money to arrange adoptions that are not going to occur. That is criminal, of course.

Marilynnhuff – I know of a co-worker who is about to become a surrogate but the embryo will not be from her egg. In other words, the womb is the only part of her that is being used in this process and she is getting like $20,000 if she delivers a healthy baby. This happens all the time. In fact, she is having the baby in another state that is more surrogate friendly than Wisconsin. If she had it here, she would have to do an actual voluntary termination of her parental rights because she is in essence the “birth mother” even though she is not genetically related to the child. Even if both biological parents were to die before the child was born, the child would be placed with the grandparents. In no case would the child remain with the surrogate in this situation. Basically, she is renting her womb. Is that considered human trafficking? I would think not.

No I don’t think what your coworker is doing is trafficking at all, I think its quite clear that she is accepting money to gestate and deliver her clients unborn offspring. Imagine saying that daycare centers were selling kids back to the parents who dropped them off in the morning.

women that take money to relinquish custody and parental control over their own young – that seems like trafficking to me.

My opinion is if the people paying the gestational carrier are not related to the child or at least one of them is not related its not trafficking.

I do not agree. For the vast majority of society, pregnancy and birth is essential to motherhood. Psychology takes a long time to catch up to technology. The surrogate should be treated partially as a mother, not a service provider.
Certainly she should be presumed a mother until the DNA tests come in.

absolutely. Until the dna tests are in, before she leaves the hospital or if its a home birth by the end of the baby’s first check up which should be the same week. They should have like 30 days to identify and test the dad or name someone else that signs a waiver if the real father ever shows up – they loose their rights to him.

Your concerned with the dueling purposes the surogates bodily atonomy vs. the rights of the people that entrust her with the embryo – you think a woman’s right to determine the course of a pregnancy could be jepordized if the people who hired her retain some authority over their embryo in her body? I see. I think thats a gamble they take I would agree that while their embryo is in her she is in charge and if she wants to stop the deal mid course she should be able to (whatever the latest point to terminate is) they could fight out the details amongst themselves. She has rights over the use of her body I just think its wrong to call her the mother of the child because when data is collected by health and human services centers for disease controll etc it will appear that she reproduced and has offspring when she does not and the other woman will appear like she has no offspring when she does. I don’t like the idea of genetic parents adopting their own offspring from the surrogate – its fundamentally inaccurate from a health statistic standpoint and what is true for health statistics should be be true across the board.

Which means that although I end up with the same outcome on who’s the parent, my view of surrogacy could lead to different policies-
If you view surrogacy as akin to a petri dish, a reproductive technology that enables another woman’s embryo to survive, you would support and encourage it, perhaps require insurances to pay etc.
If you view it as bordering on motherhood, and commodification of the body like me, you might not be able to legally restrict it but you would not support it in anyway and discourage it as much as possible.

I agree with you completely and in fact I do not necessarily support surrogacy – I’m trying learn about opposing points of view understand everything – I want to change policy but want a well rounded understanding of who would be impacted by the changes I favor. I started visiting this blog I really HATED adoption I was Anti-Adoption, but I’ve come to accept that it has its place if everything is out in the open transfer of custody really needs to be documented in court and it ensures there are records of the childs original identity and then documents the adoptive identity seperately. I’m an open record advocate – and want adoption decrees rather than revised birth certificates. My greatest concern about a woman delivering a baby she did not create is that the child’s birth certificate will say that she is the mother when in fact she is not related to the child – historically its wrong its wrong for the center of disease statistics its just a lie. It serves one purpose to allow someone who is not related to the child to pretend to be.

I think the framework you’ve set up here is interesting as it suggests a stark way of asking the question–is the surrogate more than a petri dish. For me, the answer to that has to be “yes” for many reasons.

I think the critical question then is what the difference counts for–is it enough of a difference to make her a parent when the child is born. (I will not say she is a parent before the child is born.) If she is a parent when the child is born, then I think you have to think about why you would treat her differently from a woman who had agreed to give up her child for adoption.

That second woman has some brief period of time in which to change her mind–that’s to differentiate adoption from buying a child. So if the surrogate becomes a mother upon the birth of the child, why doesn’t she get time, too?

I am not sure I call it trafficking if the surrogate is unrelated to the child. I could agree to a presumption that the woman who gives birth is the mother until DNA testing proves otherwise. She is still the birth mother just not the bio-mom. In Wisconsin, her name would be on the original birth certificate until her parental rights are relinquished and a new birth certificate is issued. In today’s world, it seems to me that we need more than a birth certificate to confer parental rights – perhaps a parental certificate which provides conclusive proof that they are the genetic and/or legal parents although I know Julie might argue otherwise.

But then then women delivering babies from eggs that they purchased, never have to document that they are not related to the child they gave birth to. So inaccurate recordkeeping begins when the child is born and she is recorded as the mother – same goes for if a sperm donor were used. I think society should be asking how did they come into custody of the child they are claiming at birth and did they have the permission of the people whose gamets were used to keep the resulting baby? Did those people sign a waiver of their rights? Do they even know that their offspring was born? Testing at birth would ensure that you had to tell the truth and produce a donor ID# the name of the clinic and whatever waivers the donor signed in order to leave the hospital with the baby. There are a growing number of men and women using ART services who come to learn that their frozen fetuses were sold or accidentally implanted in other clients without their permission or even any waivers relinquishing their rights. The same goes for people finding out that their eggs or sperm were inadvertantly or deliberately given for other clients to use. I think its important that the woman who gives birth be recorded as having gestated and given birth to a particular child but that she not be named as the childs mother and be allowed to leave with the baby if she is not maternally related and cannot prove that she had permission. It would prevent people from starting to perform parental duties on a live child and then finding out later that it was not their embryo. As traumatic as it would be to complete a pregnancy and learn you could not take the baby home because permission had not been properly granted it would not be nearly so traumatic as doing it later on down the line. Nobody should ever be named as the mother or father of a child that their body did not produce without there being a record of transfer from the people who did create the child.
Do you think it would be ok for an infertile lab tech to steal a couple of eggs for her own use? Record that a few less survived? Nobody ever needs to know. Would it mater if the egg she took was from woman who paid to have her eggs retrieved for her own use or was paid to have her eggs retrieved for use by others? What about a mans sperm? What about the possibility that labs could create more viable embryos than they ever tell couples about? What if they tell them some did not survive when they did? What if the dna of the donor used is not the same as the donor chosen who signed the release form? What of the center for disease statistics who collects the records of live births from all around the country continues to collect inaccurate records about who has reproduced and who has not and what of the children who will never know that they are unrelated to the people that they call mom and dad because their birth certificates say something that is not true? What is wrong with confirming and recording the truth for postarity if there is nothing wrong with doing it there is nothing wrong with writing it down. If indeed it is a perfectly acceptable way to build a family then make it crystal clear that the state certifies that it obtained the facts and confirmed that the child went home with people who had the permission to raise someone elses offspring? Do it up front there will not be any lawsuits down the line.

Kisarita: I am trying to understand why you would only do DNA testing if one parent was contesting their biological link to the child. Many a man has been declared the father by default even though found later or even known to not be the bio-father. Many a man has raised children as their own who suspected or knew the child was not biologically theirs. Paternity is automatic if the man is married to the mother and does not contest parentage at birth. I tend to lean more toward marilynnhuff’s position of having everything up front and out in the open. That way the child knows whom they came from. For some, knowing helps them form their identity. I think a child has a right to know.

Like others who have commented I find the idea of universal and mandatory DNA testing problematic. But it seems to me that is a hard position to stake out IF parental status follows the results of DNA testing. If the true legal parents of a child are the people whose DNA matches, then there is a good reason to do the testing each and every time. Even in a case where a married couple used a known gamete provider you might want to do the testing in order to ensure that the right person’s rights were terminated. (I’m assuming here that the married partner would then adopt.)

But of course, DNA is not what makes a person a parent for me, and therefore it’s much easier to say that mandatory/universal testing is pointless. I don’t suppose I’d forbid it if people agreed they wanted to do it, though. And of course, it might reveal interesting and important historical facts–like that a woman was not faithful to vows of monogamy.

The government has no right to know, unless the parties involved specifically request their assistance.

Also, this could lead to Nazi like social engineering. This idea brings big brother WAY too close for comfort.

What’s more, this is government paternalism at its worst. A parent has the right to decide what is best for his/her child, no matter how much other people may disagree with it.

For example there is tons of research on how spanking is bad for kids, (far more than on this issue) and yet, I strongly believe that it is not the government’s role to outlaw it except in case of clear concrete danger.

sara – this is not about the government’s right to know as much as it is the child’s right to know who their bio-parents are. Should a child have the right to know from whose gametes they were created from and if so, how does one go about knowing? The government is only interested in knowing if one of the parents applies for government assistance as it wants to attach financial responsibility for the care of the child. At least that is how I view the government’s role in determining parentage and along with it parental rights. In many respects, the U.S. government has been one of the most tolerant and least regulatory in how gametes are bought, sold or given away to make children. I think people are doing plenty of social engineering on their own without any government involvement. The question is: Is anyone getting harmed by it? Kids being raised without moms or dads – or even the possibility of knowing who they are? I don’t have a clear cut answer but I do think adult children conceived with ART are making their voices heard and what I am hearing suggests we need to listen closely.

Surely any adult can have their own DNA tested. I suppose the questions might be whether the adult has the ability for force other adults (potential DNA matches) to participate in testing, too. And if they find a match what (legally) follows from that?

True enough kisarita but if one or both parents won’t consent to DNA testing, I doubt a child can determine who their bio-parents are. I am not certain if tissue/blood from both parents are needed parental DNA testing. I would agree that every adult child should have the right to know – its just a matter of how they do that logistically.

Wow yall are so totally missing the point – I think both parents should have to prove they came into custody of the child with the full authorization and consent of the people that created the child – and that means at birth you prove you created the child and need no permission – or you show proof of permission. The idea that its some how an invasion of privacy that people might be prevented from pretending to be related to a child when they are not…Screw them and their selfish whining empty arms – they don’t deserve someone elses baby – suck it up and deal. Adopt above board don’t buy other peoples genes and pretend they are yours because you bought them – sick sick sick

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Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.